Commonwealth v. Hood

334 Mass. 76 (1956) 134 N.E.2d 12

COMMONWEALTH
vs.
OTIS ARCHER HOOD (and a companion case against the same defendant).

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1955. May 3, 1956.

Present: QUA, C.J., RONAN, SPALDING, WILLIAMS, & COUNIHAN, JJ.

Arnold H. Salisbury, Assistant Attorney General, (Fred L. True, Jr., Assistant Attorney General, with him,) for the Commonwealth.

Gabriel Kantrovitz, for the defendant.

Howard S. Whiteside, by leave of court, submitted a brief as amicus curiae.

QUA, C.J.

These are two indictments returned in April, 1954, charging the defendant respectively with having contributed money and property having a value in money to the Communist Party, knowing it to be a subversive organization, and with becoming and remaining a member of the Communist Party, knowing it to be a subversive organization. The indictments are grounded upon G.L. (Ter. Ed.) c. 264, §§ 23 and 19, inserted by St. 1951, c. 805, § 3.^[1] See also § 16A, so inserted, declaring the Communist Party to be "a subversive organization." See now St. 1954, c. 584, §§ 4 and 5.

Both cases are reported by a judge of the Superior Court before trial and without any rulings by him on the questions of law involved. G.L. (Ter. Ed.) c. 278, § 30A, inserted by St. 1954, c. 528.

These cases, we think, like Commonwealth v. Gilbert, ante, 71, also decided this day, fall within the area of prosecutions for sedition which the Supreme Court of the United States has just held in Pennsylvania v. Nelson, 350 U.S. 497, has been exclusively preempted by statutes of the United States. For reasons similar to those more fully set forth in the Gilbert case we think that the statutes of the United States to which reference is there made preclude State action on these indictments.

In each case the defendant's motion to quash the indictment must be allowed.

So ordered.

NOTES

[1] "Section 23. Whoever contributes money or any other property having a value in money to an organization which he knows to be a subversive organization shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than three years, or both."

"Section 19. Any person who becomes or remains a member of any organization knowing it to be a subversive organization shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than three years or both, provided that this section shall not be construed as reducing the penalty now imposed for the violation of any law."